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Detailed Answer

Short answer: In South Carolina, if a divorce is not legally finalized at the time of death, the surviving spouse is still the decedent’s legal spouse. That means the estranged spouse generally keeps the usual rights of a surviving spouse — including intestate inheritance rights, certain statutory allowances, and the ability to claim against the estate — unless there is a valid agreement or court order that says otherwise.

How South Carolina treats marital status at death

Probate and inheritance depend on the person’s legal status when they died. A separation or a pending divorce proceeding does not change marital status. South Carolina courts and probate officials treat the person named as spouse on the date of death as the surviving spouse. For the controlling law on probate and estates, see Title 62 of the South Carolina Code of Laws: scstatehouse.gov — Title 62 (Probate, Estates, and Fiduciaries). For family law and divorce procedure, see Title 20: scstatehouse.gov — Title 20 (Domestic Relations).

Common scenarios and what usually happens

• No will (intestate): If someone dies without a valid will, South Carolina’s intestacy rules apply. A surviving spouse usually gets a large portion (and sometimes all) of the estate depending on whether there are surviving children or other relatives. The probate code (Title 62) governs intestate succession: see the probate statutes linked above.
• There is a will that disinherits the spouse: Many states have rules that, in effect, protect a surviving spouse from being completely disinherited. Even if the will leaves the estate elsewhere, a surviving spouse often can assert statutory rights such as a forced share, a family allowance, homestead allowance, or exempt personal property. Whether a spouse can successfully claim those rights depends on the estate’s facts and whether the spouse validly waived rights (e.g., by a premarital or separation agreement). You should check the probate code in Title 62 for allowances and spousal rights.
• Beneficiary designations (life insurance, retirement): Beneficiary designations on life insurance policies and retirement accounts often override wills. If the estranged spouse remained the named beneficiary on those accounts, they usually remain entitled to those proceeds unless the decedent changed the designation before death.
• Pending divorce or separation agreement: A filed but unfinalized divorce does not remove marital rights. However, a signed separation agreement that was intended to settle property and was enforceable could limit the spouse’s probate claims if it waived estate rights and meets legal requirements. The enforceability of such agreements depends on South Carolina contract and family law rules.

Practical consequences

Because the estranged spouse is still the legal spouse until the divorce is final, the spouse may:

• Inherit under intestacy laws if there is no valid will.
• Receive statutory allowances (for example, family allowance, exempt property, or homestead) depending on the estate and applicable statutes.
• Be the payee on beneficiary-designated accounts unless those were changed.
• Be able to challenge a will or seek an elective/share claim if the spouse was disinherited (subject to deadlines and proof requirements).

When the estranged spouse may not succeed

• If the decedent executed a valid signed & enforceable agreement (for example a premarital or separation property waiver) that expressly waived probate rights.
• If the estate assets are already designated to other beneficiaries by contract (life insurance, retirement), and the designations were properly executed before death.
• If the spouse already accepted an award or distribution in the pending divorce that relinquished probate rights and is enforceable under South Carolina law.

What to do next (practical steps)

1. Gather documents: death certificate, marriage certificate, any filed divorce papers (complaint, temporary orders), any separation agreement or prenuptial agreement, the decedent’s will (if any), and copies of beneficiary designations for insurance and retirement accounts.
2. Contact the probate court in the county where the decedent lived to learn if an estate probate has started and to get deadlines and required filings.
3. If you are the estranged spouse and you want to claim rights, consult a probate/family attorney quickly. Time limits and procedural rules can be strict.
4. If you are an executor or a family member, identify whether the surviving spouse exists, determine whether any agreements waive rights, and disclose required assets to the probate court.

For an overview of South Carolina probate procedures and spousal allowances, start with Title 62: https://www.scstatehouse.gov/code/t62.php. For divorce filings and procedure, see Title 20: https://www.scstatehouse.gov/code/t20.php.

Important note: specific statutory references and enforceable rights depend on the exact facts — for example, whether the decedent left a valid will, whether there are children, whether a waiver exists, and the nature of estate assets.

Disclaimer: This article is for general informational purposes only and does not constitute legal advice. It does not create an attorney-client relationship. For advice about your particular situation, consult a licensed South Carolina attorney.

Helpful Hints

• Confirm the decedent’s legal marital status at the date of death — a divorce is only effective once the court issues a final decree.
• Look for signed written waivers (prenuptial or separation agreements) that may change spousal inheritance rights.
• Check beneficiary designations on life insurance, IRAs, and 401(k)s — they often control who gets proceeds regardless of the will.
• Locate the will early. If there’s a will, read it and have a probate attorney review it for spousal rights and possible contests.
• Act quickly — probate and estate-claim deadlines can be short. Contact the county probate court or an attorney as soon as possible.
• If you’re an executor, be transparent with the court about known spouses and pending divorce filings to avoid future challenges.
• If parties signed settlement documents during the divorce process, bring those to an attorney — enforceability can hinge on formalities and timing.
• Use the South Carolina Code online to check relevant statutes: probate matters (Title 62) at https://www.scstatehouse.gov/code/t62.php, domestic relations (Title 20) at https://www.scstatehouse.gov/code/t20.php.